Operator of kayak tour business denied permission to challenge marine casualty report

The High Court has refused to grant the operator of a Kayak tour business permission to challenge a report into an incident that occurred in south Dublin waters almost three years ago.

The Marine Casualty Investigation Board complied a report into an incident that involved more than a dozen kayakers participating in an exercise between Bulloch Harbour and Dalkey Island on September 13th, 2020. It is claimed that the emergency services were called after some of the participants in the exercise got into difficulty.

The High Court heard the kayaking tour was organised by Jenny Kilbride, who has represented and managed Ireland in Kayaking and has more than 20 years’ experience in the sport. Ms Kilbride disputes that any serious incident took place warranting an investigation by the board.

She brought an application before the High Court seeking to challenge the board’s report on grounds including that the board lacked the legal standing to conduct an investigation into the incident, and alleging that the inspector was biased and unlawfully appointed. She claimed the investigation was flawed because it was tainted by predetermination. She alleged that the report had been complied contrary to fair procedures, and that certain witness statements had been withheld from her.

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The board, whose function is to investigate all types of marine casualties, opposed the application and denied the claims made against it.

In his judgment dismissing the application Mr Justice Charles Meenan said Ms Kilbride had failed to identify “even on arguable grounds” any findings in the report that were irrational and unreasonable. He said the fact she disagrees with the findings was not a sufficient ground for permission to be granted to bring proceedings against the board.

The judge said that the two sides gave very different versions of the events of September 13th, 2020.

In its 2021 report into the incident the board said 15 people went on a commercial sea kayaking tour from Bulloch Harbour to Dalkey Island. They got split into one small group of two kayaks and a larger group, the report said. The report said three separate calls were placed by members of the public to the emergency services reporting that the kayakers were in difficulty.

It said the two kayaks in the smaller group were unable to cope with the waves. The occupants of the kayaks were overturned by a wave and knocked into the sea before being assisted back into their kayaks by instructors and local fishers.

Those who were knocked into the water were assisted by ambulance personnel back on the shore, according to the report. One of the kayakers was advised to go to hospital due to concerns over the amount of seawater swallowed, the report said, but the advice was not taken up.

The judge said that Ms Kilbride, who represented herself in her action, gave a different version of events. She said a routine tour organised as part of her business was “interrupted by the sudden and uninvited arrival” of an Irish Coast Guard helicopter, land vehicles, lifeboats and an ambulance.

The judge said the court could not resolve that dispute between the parties but was entirely satisfied that there was a “marine casualty” which warranted the commencement of an investigation by the board.

The judge said that Ms Kilbride should have raised arguments made in this judicial review action in previous proceedings, dismissed by the High Court, where she challenged the basis upon which the report was carried out.

Mr Justice Meenan said he was satisfied that Ms Kilbride had also failed to identify any lack of fair procedures by the board. He said that it at all stages had regard for her involvement in the matters being investigated. She was, the judge added, given every opportunity to make what submissions she wanted to in respect of the report.